SB102: relative to the powers of state government in the event of an incident or outbreak of communicable disease.

CHAPTER 336

SB 102-FN – FINAL VERSION

03/22/07 0592s

23Jan2008… 2394h

06/05/08 2159eba

2008 SESSION

07-1196

01/09

SENATE BILL 102-FN

AN ACT relative to the powers of state government in the event of an incident or outbreak of communicable disease.

SPONSORS: Sen. Clegg, Dist 14; Sen. Letourneau, Dist 19; Sen. Gatsas, Dist 16; Sen. Kenney, Dist 3; Sen. Downing, Dist 22; Rep. Batula, Hills 19; Rep. Kurk, Hills 7; Rep. Whalley, Belk 5; Rep. Hess, Merr 9; Rep. Bettencourt, Rock 4

COMMITTEE: Health and Human Services

ANALYSIS

This bill authorizes the commissioner of the department of health and human services, with the written approval of the governor, to ration and prioritize certain pharmaceutical agents in the event of a shortage during an incident or outbreak of communicable disease. Under this bill, the commissioner, with the written approval of the governor, has the power to close public places during an incident or outbreak of communicable disease. This bill also establishes a committee to advise the commissioner in addressing ethical issues under RSA 141-C.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

03/22/07 0592s

23Jan2008… 2394h

06/05/08 2159eba

07-1196

01/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Eight

AN ACT relative to the powers of state government in the event of an incident or outbreak of communicable disease.

Be it Enacted by the Senate and House of Representatives in General Court convened:

336:1 Communicable Disease; Closure and Decontamination. Amend RSA 141-C:16-a to read as follows:

141-C:16-a Closure; Decontamination.

I. The commissioner, with the written approval of the governor, may close, direct, and compel the evacuation [of or decontamination of any facility where there is reasonable cause to believe that there is a danger to the public health. The commissioner may also decontaminate, or cause to be decontaminated, or destroy any material of which there is reasonable cause to believe may present imminent danger to the public health] and decontamination of any building located within the state that is accessible to the public, such as businesses, primary and secondary schools, and universities, regardless of whether publicly or privately owned, when there is reasonable cause to believe the building may present an imminent danger to the public health. The commissioner may also cause any material located within or on the grounds of a building to be decontaminated or destroyed when there is reasonable cause to believe that the material may present imminent danger to the public health. Destruction of any material under this chapter shall be considered a taking of private property and shall be subject to the compensation provisions of RSA 4:46.

II. Notice shall be made by posting notice on all means of ingress or egress of the building and, within 24 hours of posting, mailing the notice, return receipt requested, to the owner of record. The notice shall state the reason for the action and its anticipated duration.

III. Orders issued pursuant to this section shall be effective immediately and shall remain in effect in accordance with this section unless the superior court issues a decision directing otherwise. Any person who is aggrieved by an order pursuant to this section may request a hearing in the superior court to contest that order. The superior court shall schedule and hold a hearing and issue a decision within 5 working days of the court’s receipt of the request for a hearing, unless a shorter period is required for review. At the hearing, the burden of proof shall be on the commissioner to prove by clear and convincing evidence that the action taken is reasonably necessary to protect the health of the public.

IV. Orders issued under this section shall be subject to the due process provisions of RSA 141-C:14-a.

336:2 New Section; Communicable Disease; Cancellation of Events. Amend RSA 141-C by inserting after section 16-a the following new section:

141-C:16-b Cancellation of Events. The commissioner, with the written approval of the governor, may order the cancellation of public gatherings and events within the state, or in specific geographic areas of the state, as is deemed necessary to prevent an imminent danger to the public health. Notice of any order canceling a public gathering or event shall be made in writing, shall specify the reason for the cancellation, and shall be delivered to the organizer of the event or owner of the venue where the event was to occur in a manner that will give as much notice prior to the cancellation as is reasonably possible. Notice shall also be given to the public in a manner that is reasonably likely to be available to the members of the public affected by the order. Such order shall be effective immediately and shall remain in effect in accordance with this section unless the superior court issues a decision directing otherwise. Any person who is aggrieved by an order pursuant to this section may request a hearing in the superior court to contest that order. The superior court shall schedule and hold a hearing and issue a decision within 5 working days of the court’s receipt of the request for a hearing, unless a shorter period is required for review. At the hearing, the burden of proof shall be on the commissioner to prove by clear and convincing evidence that cancellation of the public gathering or event is reasonably necessary to protect the health of the public.

336:3 New Sections; Communicable Disease; Custody; Rationing; Cost of Items. Amend RSA 141-C by inserting after section 17-a the following new sections:

141-C:17-b Custody; Rationing. If there is a statewide or regional shortage or threatened shortage of any anti-toxins, serums, vaccines, immunizing agents, antibiotics, and other pharmaceutical agents, or mechanical equipment, and such shortage poses a serious threat to the public health, the commissioner, with the written approval of the governor, may control, restrict, and ration the use, sale, dispensing, distribution, or transportation of such agents as necessary to best protect the health, safety, and welfare of the people of this state. In making rationing or other supply and distribution decisions, the commissioner may determine the preference and priority for distribution of such agents, such as giving preference to health care providers and emergency response personnel. The commissioner, with the written approval of the governor, shall have the discretion to take custody of all supplies of specific anti-toxins, serums, vaccines, immunizing agents, antibiotics, and other pharmaceutical agents, or mechanical equipment, existing within the state to ensure that such agents are distributed and utilized appropriately. Notice of an order issued pursuant to this section shall be given in writing to the owner of the personal property, or, if the owner cannot be readily determined, to the person in charge of the location where the personal property is located. The notice shall specify the reason for the action and its expected duration. Such order shall be effectively immediately and shall remain in effect in accordance with this section unless the superior court issues a decision directing otherwise. The owner of any property subject to an order issued pursuant to this section may request a hearing in the superior court to contest that order. The superior court shall schedule and hold a hearing and issue a decision within 5 working days of the court’s receipt of the request for a hearing, unless a shorter period is required for review. At the hearing, the burden shall be on the commissioner to prove by clear and convincing evidence that the order is reasonably necessary to protect the health, safety, and welfare of the public. Multiple requests for hearings under this section may be consolidated into one hearing if the underlying facts are similar, the court deems such consolidation to be appropriate, and the court determines that such consolidation will adequately satisfy the due process rights of the persons who requested a hearing.

141-C:17-c Compensation and Expenditures. Items taken by the commissioner pursuant to the provisions of this chapter shall be subject to the compensation provisions of RSA 4:46, but in no event shall the owner thereof be entitled to more than the Medicaid rate for the item that was in effect at the time of the taking. Notwithstanding the provisions of RSA 9:19-9:21, the commissioner may make such expenditures as necessary to carry out the provisions of this chapter; provided, that expenditures are made from funds appropriated to the department that the commissioner determines to be available for this purpose and information regarding the expenditures is promptly submitted to the fiscal committee of the general court and the governor and council.

336:4 New Sections; Communicable Disease; Ethics Committee Established. Amend RSA 141-C by inserting after section 25 the following new sections:

141-C:26 Ethics Committee.

I. There is hereby established an ethics committee to offer advice to the commissioner relative to the ethical issues that may be identified in the course of planning for, and responding to, outbreaks of communicable disease that threaten to become epidemic or pandemic.

II. The committee shall consider the ethical implications of any of the powers that may be exercised by the commissioner under the provisions of this chapter including, but not limited to, the confiscation, distribution, and rationing of anti-toxins, serums, vaccines, immunizing agents, antibiotics, and other pharmaceutical agents, and mechanical equipment; the issuance and enforcement of orders of isolation, quarantine, medical examination, and medical treatment; issues relative to information sharing and confidentiality; and the provisions for due process for orders issued pursuant to this chapter.

III. The members of the committee shall be as follows:

(a) The director of the division of public health services.

(b) The state epidemiologist.

(c) The attorney general, or designee.

(d) A representative of a public health network, appointed by the commissioner.

(e) A representative from a college or university public health program, appointed by the commissioner.

(f) A chief of police or a police officer of a local police department, appointed by the New Hampshire Association of Chiefs of Police.

(g) A chief of a local fire department, appointed by the New Hampshire Association of Fire Chiefs.

(h) A physician, licensed under RSA 329, appointed by the New Hampshire Medical Society.

(i) The commissioner of the department of safety, or designee.

(j) A member of a fire department with a minimum of EMT-B certification, appointed by the Professional Firefighters of New Hampshire.

(k) A representative of a hospital, appointed by the New Hampshire Hospital Association.

(l) A county representative, appointed by the New Hampshire Association of Counties.

IV. The commissioner shall appoint a member of the committee to act as chairperson. The committee shall meet initially within 30 days of the effective date of this section and then as regularly as the chairperson shall direct.

V. The commissioner may at any time direct questions to the committee or request guidance on ethical issues.

VI. The committee shall be solely advisory in nature and any guidance, guidelines, or protocols issued by the committee shall not be binding on the commissioner.

141-C:27 No Conflict With Emergency Management Powers. Nothing in this chapter shall be construed to limit or restrict the exercise of the governor’s emergency management powers under RSA 4:45 – RSA 4:47.

336:5 New Paragraph; Volunteers for Government Agencies; Emergency Management Function. Amend RSA 508:17-a by inserting after paragraph II the following new paragraph:

II-a. For purposes of immunity and exemption, any declared public health or public safety incident shall be considered an emergency management function under RSA 21-P:41, I-II.

336:6 Contingency. If HB 512-FN of the 2008 legislative session becomes law, RSA 141-C:26 and RSA 141-C:27 as inserted by section 4 of this act shall be renumbered as RSA 141-C:27 and RSA 141-C:28, respectively.

336:7 Effective Date. This act shall take effect upon its passage.

Approved: July 7, 2008

Effective Date: July 7, 2008